# Petition for Writ of Certiorari — Rivera v. Frank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1604%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1009 ## Text “:re'9 —__ ; me SUPREME COURT OF THE UNITED STATHB | Ll, t NO. ap | OCTOBER TERM, 1988 | . MAR cl OS i FORTUNATO C. RIVERA, PETITIONER, WILLIAM F. BOLGER, Postmaster General UNITED STATES POSTAL SERVICE, RESPONDENTS. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FORTUNATO C. RIVERA Petitioner Pro Se 11621 Nearing Drive Anaheim, California 92804-6745 Telephone: (714) 636-7785 WESTIONS PRESENTED FOR REVIEW 1. Whether the cancellation of a Notice of Appeal to a statutory commis-— sion mistakenly taken out from an invalid azency decision operate to nullify the exhaustion of administrative remedies already undertaken on a second and con- tinuing discrimination complaint where the first claim was initially included therein with the acquiescence of the wuUgency? 2- Would the holding be different it there is a valid agency decision? 3. In either case, is a party bound to stay with the commission for 180 days as per 42 U.S.C. 2000e-16(c)? 4. Whether the Postal agency has met its burden of proof in justifying the repeated rejection of the petitioner for promotion over the years. | 5. wWhether the Lower court erred in its findings of fact and conclusions - One —- of law? 5. Whether a Federal District Court could ignor for any reason to pass judg- ment on a Claim it has heard in a regular trial? . -. Two = TABLE OF CONTENTS Page Parties to the proceedings ..... Ll Omamaem BWOLOW «sce eee ceceees 2 Jurisdiction . « « «© «© «© « « «© «© ee 2 Stututes, regulations and constitu- tional regulations involved ... 3 Title VII of the Civil Rights Act of 1964, as amended, 42 USCA 2000e-16 .« « « « «© © © e« 3 Diserimination in kmployment Act 1f 1967, as amended 29 USUA 633a . . . 7 . . . * . . . 3 29 Code of Federal Regulations . , 3 United’ States Constitution Amendment V...«.«e«eeeeee 6 Statement of the case ..« « « «© e » 6 Reasons for granting the writ ... 12 I. Where a statutory regulation outlines an investizative and decisional rules to fol- low, mandatory compliance therewith is required. An administrative investiga-— tion and decision rendered not in conformity therewith do not resolve the issues and controversies in the complaint. Hence there is no final decision to speak of and no appeal could be taken thereon. « «© « © ce © e Le Iil.. The District Court's decision which was affirmed and fur- ther amplified by the Court of Appeals conflicts with all relevant prior judicial interpretation and applica- tion of the “continuing discrimination" doctrine in the exhaustion of adminis-— Srmeave FeMeGdLes .-.« « « co « LA III. The rules of law laid down in Castro v. United States 775 F. 2d 399, 403-404 (let Cir. 19385); Purtill v. Harris, 658 F. 2d 134, 138 (3rd sie 71981): & Jordan v. United States, 522 F. 2d 1128, 1132 (8th Cir. 1975), do not apply to this cas@. e © e « e ° e IV. The Postal agency has not met its burden of proof in ar- ticulating legitimate and non-discriminatory reasons for rejecting Rivera to all the positions that he had sought over the years. .. .» V. The lower court ignored to pass judgment on Rivera's claims for promotion to sunervisor under the Santa Ana Craft Skills Bank and Computer Mark-Up supervise: sory selection procedures. . Conclusion - .~. * . o . . * * ” + . CASES: Aikens v. U.S. Postal Service 23 FEP Cases 1142 (1980) .... Brown v. General Services Admi- nistration, 425 US 820, 12 FEP 1361 (1976) © . e °* e« e . a T» Castro v. United States, 1715, F. 2a 399, 403-404 (ist Cir. 1985) . * + 7 o . + s 7 = . . 8, Higgins v. State of Oklahoma, 25 FEP Cases 371, 372, (10th Cir. 1931). * e @ * ee e . ¢ @ Jordan v. U. “ie 522 F, 2d 1128 2332 (66h Git. 29TS)}0 o 0.0 « Ge aS 18 21 28 29 18 21 Page Lee v. Conecuh Vounty Board of Education, Ala. 1981, 634 F. 2d 959. . e @ ° ° 2 * e e e o 8, 27 Olson v. Rembrandt Printing Co., 511 F. 2d 1228, 1234 (8th Cir. 1975). « « « « « « 16, 19 Patterson v. American Tobacco Co., CeAe Va. 1980, 634 F. ae 2d 744. o e o s -_ o a o * . 8, 18 Purtill v. Harris, 658 F. 2d 134, 138 (3rd Cir. 1981)... 8, 20 Reed v. Lockhead Aircraft Corp. 613 F. 2d 757, 759, 762 (9th Gir. 1960) «2s 220062 0 «6 2 8 Rich v. Martin Marietta Corp. 522 F. 2d 333, 348 (10th Cir. 1975). a ey ee aay ee oe ae ee 8, 17 Texas Dept. of Community Af- fairs v. Burdine, 450 US 248 (1981) * e . e . © e ° ° * e * 28 United Air Lines v. Evans 431 US $93 (ASTT)« «© © « « 0 0 « 16 Valentino v. U.S. Postal Ser- vice, 674 F. 2d 56 (D.C. Cir. 1982) « e o a ev a e o * Wang v. Hoffman, 694 F. 2d 1146 (9th Cir. 1982) .... .8, 23, 27 APPENDICES - 16 A -— Decision Opinion of the Court of Appeals, 20 October 1987. B —- Court of Appeals Order denying Petitioner's request for re- hearing with suggestion for re- hearing en banc. 11 Jan. 1988, C - U.S. District Court Judgment on Case No. CV 82-5326 MPR February 11, 1986. C-2 The corresponding Findings of Fact C~6 —~ and Conclusions of Law. Februery 11, 1986. - iii -. N Plaintiff's Notics of Motion and Motion to Amend Pindings of Pact and Ju ent, dated 24 February 1986. U.S. District Court dudgment on CV 82-2379 MRP, dated February 11, 1986. The corresponding Pindings of Pact and Conclusions of Law dated February ll, 1986. Plaintiff's Notice of Motion and Motion to Amend Pindings of Pact and Judgment, dated 18 Pebruary 1986. interpretive letter dated Sept- ember 29, 1982, from the Di- rector, Employee & Labor Relations, United States Post Office. Interpretive letter dated Dec- ember 22, 1981, from the Gen- eral Manacer, ESO Appeals Division, USPS, Washingon, D.C.. Interpretive letter, plain- : tiff's Notice of Appeal, dated August 390, 1952. Interpretive letter, plain- tiff's notice to the ESOC dated October 19, 1932, that he was suing in Court and therefore his Notice of Appeal be cancelled. Interpretive document, Part II The Profile Assessment Sys- tem for Supervisors (PASS). 42 USCA S. 2000e-16 Civil Rights Act. 29 USCA S. 633a Age Discrimination in Enploy- ment Act. Interpretive USPS Qualification Standard 0160. Proof of Service by mail. e iV « IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1988 NQ. ee = = : == 2 ed FORTUNATO C. RIVERA, PETITIONER, V. WILLIAM F. BOLGER, Postmaster General UNITED STATES POSTAL SERVICE, RESPONDENTS. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CERCUIT The petitioner, Fortunato C. Rivera (hereinafter Rivera), respectfully prays that a writ of certiorari issue to review 1 2 the judgment of the United States Court of Appeals for the Ninth Circuit entered on 2) October 19387. OPINION BELOY The Court of Appeals entered its Opi- nion decision on 20 October 1937 affirn- ing the lower court that Rivera's repeat-e ed rejection for promotion was for valid reasons and that his 1978 and 1979 claims for the position of E&O Investizator were barred for failure to exhaust administra- tive remedies. A copy of the opinion is attached ns Appendix A. The Court denied Rivera's petition for rehearing with suggestion for rehear- ing en banc on 1l January 1978. A copy of the Order is attached as Appendix 3. His request to argue his case was not al- so granted. JURISDICTION The Opinion decision of the Court of Appeals was entered on 20 October 1937 3 anu its Order denying Rivera's petition for rehearing and rejecting his suggest— tion for rehearing en banc was filed on 11 January 1988. The jurisdiction of this Court is invoked under Title 28, United States Code, Section 1254(1). No other neti- tioner is involved in this petition. STATUTES, REGULATIONS AND CONSTITUTIONAL ba A Oi 3 4 i Ae Title VII of the Civil Rights Act of 1964, as amended, 42 USCA 200V0e- 16, and the Age Discrimination in Employ- ment Act (ADEA) of 1967, as amended, 29 USCA 633a, prohibit employers including Federal agencies to discriminate against their employees with respect to terms, conditions or privileges of employment because of their age, race, sex, or na- tional origin, or because they have par- ticipated in an ectivity protedted by law. B. 29 Code of Federal Regulations - ————— EEE 1. Section 1613.215 on rejection : complaints: "The head of the agency or his de= signee may reject:-a-camplaint ‘which- was not ‘timely filed and: shall:reject those allegations in a complaint which are not withih the purview of (Sec.) - 1613.212 or which set forth identical matters as contained in a previous complaint which is pending in the agency or has been decided by the agency." 2. Section 1613.216(a) on investi- gation partly provides: "The person assigned to investigate the complaint shal.l occupy a position in the agency which is not, directly or indirectly, under the jurisdiction of the head of that part of the agen- cy in which the complaint arose." 3. Section 1613.221(a) - Decision by head of agency or designee; "The head of the agency, or his de- Signee, shall make the decision of the agency on a complaint based on infor- mation in the complaint file. A per- son designated to make the decision ‘:: for the head of the agency shall be one who is fair, impartial, and ob- jective." 4. 1613.233(a) Re: Appeal to the Commission. Time limits: ". 6 « « & Complainant may file a 7 a ee ct eee ee ee ee Pa ciate ied tee nk Ed a ie ee ee a notice of appeal at any time up to 20 calendar days after receipt of the agency's notice of final decision on his or her complaint. .... « Any statement or brief in support of the appeal must be submitted to the Com- mission and to the defendant agency within 30 calendar days of filing the notice of appeal. For purposes of this Part, the decision of an agency shall be final only when the agency makes a determination on all of the issues in the complaint." 5. Section 1613.281. Statutory Right: "An employee or applicant is autho- rized by Section 717(c) of the Civil Rights Act, as amended, 84 Stat. 112 to file a civil action in an appro- priate United States district court: (a) Within Thirty (30) calendar days of the receipt of notice of final action taken by the agency .'on the complaint. ' ; tb) After one nunawed and eighty (ass) calendar days from the date of filing a complaint with the agency if there has been no decision, (c) Within thirty (39) calendar days after receipt of final action taken by the Commission on the coin- plaint, or (ad) After one hundred and eighty (180) calendar days from the date of filing an appeal with the Commission if there has been no Commission deci- sion." For purposes of this Part, the deci- sion of an agency shall be final only when the agency makes a determation on all of the issues in the complaint." Cc. ‘United States Constitution - —_ Amendment V: "No person shall. ...- hae de= priveed of life, liberty, or property, without due process of law... . STATEMENT OF THE CASE There are two lower court decisions involved in this petition in two suits under Title VII of the Civil Rights Act of 1964, as amended, 42 USCA 2000e-16 and ADEA, as amended, 29 USCA 633a. Copies of the judgnents, findings of fact and conclusions of law and Rivera's opposi- tion papers are attached as Appendix C to C-28. Rivera claims that he was discrimi- nated against by the Postal agency over a long period of time because of his age (then "50 plus"), race (oriental brown), national origin (Filipino), and because he has filed complaints against his officials. After a joint trial, the lower court 7 held that Rivera failed to exhaust his > administrative remedies on his 1978 and 1979 claims for EEO Investigator. Browm v. General Services Administra- tion, 425 US 820, 12 FEP 1361 (1976). 42 USC 2000e-16(c); that he was less qualified than the applicants who were selected for a similar position in 1980; and that he failed to qualify for super- visor under the old system and PASS se- lection procedures from 1977 to 1980. The court failed to pass upon Rive- ra‘'s claims for supervisor under the . Santa Ana Craft Skills Bank and Compu- ter Mark-Up Supervisor selection proce-— ' dures also in 1977-1980 although they were also tried with the other claims. j The Court of Appeals ignored to pass judgment on the same claims: The lower court ignored Rivera's position on "continuing discrimination" that affords him a remedy for past ae | 8 discrimination, "disparate impact" and "subjective evaluation". Rich v. Martin Marietta Corp., 522 F. 2d 333, 348 (10th Cir. 1975); Reed v. Lockhead Aircraft 1980); Higgins v. State of Oklahoma, 25 FEP Cases 371, 372, (10th Cir. 1981); Patterson v. American Tobacco Co., C.A. Va. 1980, 634 F. 2d 744; etc. and Wang v. Hoffman, 694 F. 2d 1146 (9th Cir. 1982); Lee v. Conecuh County Board of Educ., Ala. 1981, 634 F. 2d 959; etc. On appeal, the two cases were con- solidated end the Court of Appeals af- firmed the lower court. It held that Rivera's request to cancel his Notice of Appeal amounted to abandoning his Claim, hence failing to exhaust his ad- ministrative remedies. Castro v. United States, 775 F. 2d 399, 403-404 (lst Cir 1935); artill v. Harris, 658 F. 2a 134 133 (3rd Cir. 1981); Jordan v. U.'S.: 9 522 F. 2d 1128, 1132 (8th Cir. 1975). Rivera who is challenging his em: - ployer's promotional policies, systems and practices, is a U.S. citizen of Fi- lipino origin and is now 64 yeurs of age. He is a holder of B.S. and M.A. degrees in #ducation and is also a Bachelor of Arts and Bachelor of Laws. He has been a part-time college instructor, an of-'.: fice supervisor and a government super- visor of private schools, among others. He joined the Postal Service in Santa . Ana on June 16, 1976, as a casual clerk- ! carrier and became a permanent-—career ° clerk on November 23, 1976. He has been working as such until the present tine. Ile has earned three certificates in Post- al Management and Customer Service and has met the requirement of the Western Regional PASS Training Program in effect Leia easel as in 1980. (Appendix D) Rivera had consistently «end was repeatedly rejected for promotion to. EEO Investigator in 1978, 1979 and 1980 and to supervisor from 1977 to 1980 under four different supervisory selection pro- cedures in the same four-year period. Rivera did not file a complaint af- ter he was rejected for investigator in 1978 because he was encouraged by the agency to apply for future vacancies ° which he did in 1979 and 1980, but wag also rejected. He filed his first con- plaint after his rejection in 1979. While this complaint was being processed by the Western Regional EEO Branch, the discriminating office against whom the complaint was filed, Rivera was again rejected for the 1989 vecency. He then consolidated all his 1978, 1979 and 1930 claims into 2 single complaint and filed it with the same office on May 18, 1981, under the doctrine of "continuing discri- mination". The same complaint was 11 accepted and no part of it was ever re- jected as per 29 CFR 1613.215, supra. On December 22, 1981, the headquars ters EEO Appeals Division of the Postal Service in Washington, D.C., had deter- mined that the SEO Branch had erroneous- ly processed the said complaints. Ao«>": cordingly, it immediately assumed juris- diction over the two complaints. (Pls. see Appendix & Ironically, the first complaint was decided on August 16, .'>.: 1982, by the agency solely on the basis of the investigative report submitted by the GEO Branch, the discriminating of+#ic» fice. Rivera was then forced to file a Notice of Appeal with the Commission, but was never perfected with the required brief. On October 10, 1982, he request- ed for its cancellation after he had de- termined that the agency had not indeed rendered a final and appellable decision os “P r A 12 and that he had already decided to sue in court. (See Appendix F & G). After about sixteen (16) months since his second complaint was filed on May 18, 1931 and without the agency ren- dering its final decision or rejecting any part of it, Rivera sued in court on October 14, 1982, under the doctrine of “continuing discrimination". In spite of this situation, the Commission rendered its unwanted deci- sion on April 21, 1983, on the basis of the self-serving report submitted by the EEO Branch. REASONS FOR GRANTING PHE WRIT © 1. Where a statutory regulation outlines an investigative and decisional rules to follow, mandatory complinnce therewith is required. An administra- tive investigation and decision rendered not in conformity therewith do not rekwe - solve the issues and controversies in the complaint. Hence, there is no final decision to speak of and no appeal could be taken thereon. The reasons are very obvious. i. e. No Federal official will ever prepare an adverse report against his Office and no Federul agency will ever render an ad» verse decision against itself. The statutory regulations (CFR, supra) have been designed to protect complainant-oemployees from unscrupulous discriminatory practices of their em=: - ployers. In view of the flagrant disregard or defiance of the said regulations in the handling of the complaint by the 280 Branch, the very office against whom it wes 7iled, the Postal agency has not indeed rendered a final, binding and ap- pealable decision von Rivera's 1979 com- plaint. Consequently, the Commission hes never acquired jurisdiction over the case. The least it could have done was to dismiss the case for the same cause. Therefore, the complaint remained undecided by the agency after 180 days days from the date it was filed and therefore rined for court action. 50, it could have been futils for Rivera to have stayed with the Commission for 180 days before he sued in court. II. The District Court's decision which was affirmed and further amplified by the Court of Appeals conflict: with all releviwt prior judicial interpreta tion and application of * "continuing discrimination" doctrine in ti. exheus- --e— tion of adwinistrative Pemeadis ie It is a-settled general rule of law thet a Federal employee filing a Title VII and ADEA claims must first exhaust his administrative renedies befcre suing in court, otherwise his claim is barred by statute of limitations. Brown ve. G.3.A. 15 42 USC 2000e-16(c), supra. The doctrine of "continuing discri- mination" is an exception to the above rule because it affords a remedy to past discrimination. (see cases below). Brown was not pursuing a continuing discrimination complaint. He sued in court 12 days beyond the 30-day Linita- tion from the time the Commission had decided his case against him. On the other hand, Rivera has properly exhausted his administrative remedies thru an open avenue most favorable to him by consoli+ dating all his 1978, 1979 and 1980 claims into a single complaint and then sued in court within the time limitation. Although the agency was impowered to to reject the consolidated complaint or any allegations therein or because it set forth identical matters contained in | Rivera's first complaint which was then pending with the agency, it never attempted 16 to exercise such power as per 29 CFR 1613.215 (supra). By way of estoppel, it was too late for the agency to oppose such claims for the first time in the lower court. Where a plaintiff is not complaining of a discrete act of discrimination, the doctrine of continuing discrimination may except him/her from the strict time re- quirement of Title VII in order to pro». -° vide remedy for past actions which ope- rate to discriminate against the complain- ant at the present time. Qlson v. Rem-: brandt Printing Co., 511 F. 2d 1228, 1234 (8th Cir. 1975). To demonstrate a conti- nuing violation, a pleintiff must show a series of related acts, one or more of - which falls within the limitations period. Valentino v. U.S. Postal Service, 674 F.2q4. 56 (D.C. Cir. 1982). The complainant must allege a present effect of past discrimi- nation. United Air Lines v. Evans, 431 17 U.S. 553 (1977). Rivera is not complaining of a dis- crete act of discrimination. Records show that he has been repeatedly rejected for promotion to EEO Investigator three times and supervisor four times all from 1977 to 1980. Courts held that as long as the plain- tiff is alleging non-promotion over a per- iod of time, the discriminatory failure to promote such employee constitutes a continuing violation for purposes of fil- ing a complaint under Title VII. Rich v. Marietta, etc. supra. The time limitation in filing a com- plaint is inconsequential in action chal- lenging employer's entire promotion system or continuing discriminatory practices. Tbid.). Where employer's promotional poli- cies were found to involved a pattern of practice of discrimination looking i. i SI) | minorities into less favorable job posi- tions the effects constituted continuing violation of law and claims related thereto were :noti' barred by failure to have challenged the promotional policies at enception. Patterson v. American To- bacco, supra. Records show tha’ as of 1980 no en- ployee of Filipino origin has ever been promoted to the kind of position that Rivera had sodught.! This. was never: contro verted by the Postal. agency. III. The rules of law laid down in Castro v. United States, 775 F. 2d 399 403-404 (1st Cir. 19385); Purtill v. Har» ris, 658 F. 24 134, 138 (3rd Cir. 1981); and Jordan v. United Stetes, 522 F. 2d 1128, 1132 (8th Cir. 1975), do not apply to this case. Castro v. U.S. Castro and Diaz sue in court with their Title VII and ADEA Claims against the F.D.1.C.. Castro 19 never contacted an EEO Counselor nor $i: filed a formal complaint with the FDIC,... hence he failed to exhaust his adminis- trative remedies. Diaz has initiated administrative proceedings in his ADEA Claim with the MSPB and with the agénoy's EEO: Office. The EEO:Office soon cane”!’:2 celled his complaint on account of his appeal with the MSPB which was filed ear- lier without counselling. Soon there- after he had withdrawn his MSPB appeal with no indication that he has pursued further administrative relief before he sued in court. The court held that Diaz failed to exhaust his administrative re- medies. Unlike Rivera who is pursuing a con- tinuing discrimination claim, Castro and Diaz were complaining of a single act where they could not escape the strict requirement of Title VII. (Olson, supra). On the other hand, Rivera has 20 cancelled his Notice of Appeal with the Commission for a lawful cause and that he exhausted his administrative remedies thru an open avenue most favorable to him. Purtill v. Harris = Purtill sued in court before the Commission took final action on his. ADEA complaints, hence he failed to exhaust his administrative re- medies in spite of his assertion that 130 days had already lapsed since he ini*i° | tiated administrative proceedings. Rivera's Situation is different. The agency decision was not valid and the Commission never acquired jurisdiction over the case. &n -fectihis:1978 and ~»- 1979 claims were already included in his second complaint that had officially passed the proper channels of adminis-— trative remedies. The consolidation of all his 1978, 1979 and 1980 claims into a single complaint had nicely simplified the whole proceedings for the benefit of all parties concerned as well as the court. If it is taken for granted that there was a valid agency decision, Jiv01;.': Rivera's ADEA claim would still survive the fact that the Commission was proper- ly notified before he sued in court as-::': per 29 USCA 633a(d). Jordan v. U.S. — Jordan's failure to cooperate caused the Cemmission to cancel his complaint. This was not the case of Rivera as he had properly exhausted his administrative remedies thru an open route most favorable to him. He was not bound per 42 U.S.C. 2000e-16(c) to stay with the Commission for 180 days before he could sue in court. The unfamiliar decision of the Com- mission is arbitrary, confescatory and violative of Rivera's right under the Fifth Amendmen;. IV. The Postal agency has not met 22 its burden of proof in articulating legi- timate and non-discriminatory reasons for rejecting Rivera to all the positions that he had sought over the years. EEO Investigator Position —- Prepon- derance of evidence show that Rivere was the only applicant with a combination of Master's Degree in Education and Bachelor of Laws with creditable experiences in supervision, investigation, hearing of complaints, arbitration, and mediation, among others. Rivera's Trial Exhibits Nos. 52 to 52c, USPS Qualification Stan- dards No. 0160, allows the substitution of experience with a degree at a rate of 9 months for every academic year of educ- ation up to a maximum of 36 months. With this, Rivera's 36 months of credit exper- ience is more than enough to offset the light to moderate EEO counselling exper- iences of the candidates who were said to be more qualified than Rivera. The agency 23 - has never articulated any legitimate and non-discriminatory reasons why the «sé=«. - lecting officials had given more credit to Postal Service EEO experience than the required skills in investigation and rthe readiness to assume the role of arbitra- tor, mediator and hearing officer which Rivera possessed. The agency had not gi- ven any reason why Rivera was denied ind: terview in the 1979 and 1980 positions, while he was interviewed for the 1978 va- cancy and at a time when he had not as yet filed any complaint against the Pos- tal management. With the prevailing situation, #i. > Rivera is not even required to prove that he was the best qualified applicant for all the positions that he had sought. Wang v. Hoffman, 694 F.. 2d 1146 (9th Cir. 1982). If Rivera was not the best qua- Lified applicant (arguendo), at least he was one if not the best deserving applicant for promotion in a functional affirmative action program. Supervisor Position -— The Postal agency had not articulated any legitimate and non-discriminatory reasons for the following management actions: 1. Why Rivera was subjected to the so-Called 204-B supervisory training when this was not required in the PASS select- tion procedure (see Appendix H) and then evaluated as not qualified to become a supervisor by the very discriminating officials only after seventy (70) days when the said training was ended and at the time when he had already filed a com- plaint against the management. 2. The legitimacy of the frequent changes and use of four different super- visory selection procedures in so short a time, 1977-1980, has never been justi- fied by the management. This and the above practices had adverse impact on toes the class that Rivera belongs. 3. There is no concrete evidence to show that the PASS selection procedure was introduced on April 1, 1978. Records show that PASS work-books and answer-. sheets were distributed to applicants on April 10, 1978 and successful candidates received their eligibilities only in March and April of 1979. Records also show that Rivera reached his 14 years of Postal service on April 3, 1978. 4. Granting (nrguendo) that the PASS selection was introduced on April l, 1978, which, as claimed by the management also marked the end of the old selection procedure. What must be the reason why such change was made at a time when Rivera needed only a couple of days to complete his 14 years of service and also considering the fact that this require«c ment had been reduced to only one year under the PASS selection procedure? 5. Aside from his assests for EEO Investigator, Rivera was the only appli- cant for supervisor with: (a) a Master's Degree in Education major in Administra- tion and Supervision, (b) three certifi- cates in Postal Maneagemand and Customer Service, and (c) with several years of teaching, supervisory and leadership ex- periences. With th@se, it sounds ironi- Cally oppressive to just brand him as not qualified to become a Postal Super- visor, a position he was well prepared to assume. In line with the case of Aikens v. U. S. Postal Service, 23 FEP Cases 1142 (1980) Rivera has clearly demonstrated that he was qualified to become a super- visor in view of his education, exper- iences and Postal achievements. oe The use of subjective criteria in the selection system is not enough of itself to violate Title VII, but courts bare ece nese have expressed concern over the use of subjective criteria when there is evi- dence that criteria furthered bias or discriminatory classification. (see Wang supra). Establishing qualification is an employer's prerogative, but an employer may not utilize wholly subjective stand- ards by which to judge its employees’ qualifications and then plead lack of qualification when its promotion process is challenged as discriminatory. Lee v. -Conecuh County Board of Educ. 634 F. 2d 959. (Ala. 1981). From the factual situations and le- gal standards presented, it appears that the agency had no definite and objective criteria in the selection of its employ- ees for promotion. Its practices though neutral on its face have adverse impact on Rivera and his class as evidenced by the statistical disparities in promotion 28 mentioned ahead. The Postal agency has not justified the legitimacy of its pro- motional policies and practices that had biased Rivera and deprived him of his em- ployment rights protected by law. The agency's profferred explanation in re- jecting Rivera for all the promotions that he had sought are not legitimate and non-discriminatory, hence unworthy of credence. (See Texas Dept. of Commu- nity Affairs v. Burdine. 450 US 248 (1981). The agency's reasons are just pretexts to cover-up the discrimination and retaliation that had been perpetrat- ed and perpetuated against Rivera over the years. V. The lower court ignored to pass judgment on Rivera's claims for promotion to supervisor under the Santa Ana Craft Skills Bank and Computer Mark-Up super- visory selection procedures. These claims were also tried with 29 the other claims. Rivera's insistence for a judgment on these claims was ignored by the lower court. CONCLUSION For the foregoing reasons petitioner Fortunato C. Rivera most respectfully requests that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Gircuit. DATED: whi) $ th day of March, 1988. Anaheim, California 92804- Telephone: (714) 636-778 In Propria Persona FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT “ae A>, eRe ‘3 P Fortunato C, RIVERA, Plaintif}/-Appellant, Mo. peta ‘ a‘ D.C: No. : CV 82-2379-MRP UnNrrep STATES PosTAL SERVICE, Defendant-Appellee. — Fortunato C. RIVERA, ne HaintiffAppe Plaintif/-Appellant, No. 86-6607 a 1).C. No. Wittiam F. BoLGer, Postmaster j CV-82-5326 General, UNITED STATES POSTAL OPINION SERVICE, Defendants-Appellees. — Submitted August 12, 1987* Filed October 20, 1987 Before: J. Blaine Anderson, Harry Pregerson and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Noonan Appeal from the United States District Court for the Central District of California Mariana R. Pfaelzer, District Judge, Presiding *The panel finds this case appropriate for submission without oral argu- ment pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a). | Ap p endisx A to Rivera Vv. UNITED STATES SUMMARY ; Administrative Law : Appeal from judgment. Affirmed. Appellant Rivera in 1978, 1979, and 1980 applied to the Postal Service for promotion. Each time other applicants were selected. He filed an administrative complaint as to his 1979 rejection. He received an adverse ruling. He appealed to the Equal Employment Opportunity Commission (EEOC). Shortly thereafter, he requested the EEOC to “cancel” his notice of appeal and filed suit with the district court. The EEOC upheld the Postal Service. Rivera did not think it nec- essary to file a new appeal to the district court and relied on his earlier filing. He also mad in administrative complaint as to the 1980 rejection. He also sued the Postal Service for failing to promote him in 1978 and in 1979. [1] Rivera’s 1978 claim is barred by failure to exhaust his administrative remedies. [2] Once a party appeals to a statu- tory agency the appeal must be “exhausted.” To withdraw is to fail to exhaust one’s remedies. COUNSEL Fortunato C. Rivera, Anaheim, California, for the plaintiff- appellant. James A. Friedman, Washington, D.C., for the defendant- appellee. Appendix A-1 Rivera v. UNiteED Starts 3 OPINION NOONAN, Circuit Judge: Fortunato C. Rivera appeals from two district court judg- ments against him in two separate Title VIL and age discrimi- nation cases against the United States Postal Service. We consolidate the cases and allirm the district court. FACTS Fortunato C. Rivera is a United States citizen of Filipino ancestry, now 63-years-old. He is the holder of B.S. and M.A. degrees in education and is also a Bachelor of Arts. He has been a part-time college instructor, a government supervisor of private schools, an oflice supervisor, and a senior clerk. He has three certificates in Postal Management and Customer Service, and was a candidate in the Profile Assessment Sys- tem for Supervisor. On three separate occasions, in 1978, 1979, and 1980, he applied to the Postal Service for promo- tion to Equal Employment Opportunity Investigator. Each time other applicants were selected in his place. Rivera did not file an administrative complaint as to his non-selection in 1978. He did file such a complaint as to his 1979 rejection and after the Postal Service ruled against him, he timely appealed on August 30, 1982 to the Equal Employ- ment Opportunity Commission (EEOC). On October 10, 1982, he wrote the EEOC requesting “cancellation” of his notice of appeal. He then filed suit with the district court. The EEOC, by decision of April 21, 1983, upheld the Postal Ser- vice. Rivera did not think it necessary within 30 days to file a new appeal to the district court and relied on his earlier fil- ing. Rivera also made an administrative complaint as to the 1980 rejection and after the complaint was rejected by the Postal Service he timely brought suit in the district court: he also sued the Postal Service for discrimination in failing to promote him in 1978, and in 1979. Appendix A~2 Rivers v. UNitep States ’=s In addition, Rivera applied in 1980 for promotion to a supervisory position in the Postal Service and was rejected from the training program. He filed an administrative com- plaint which was rejected and from this rejection he timely filed suit in the district court. ANALYSIS 11} Unfortunately Rivera’s 1978 claim is barred by an inex- orable rule: failure to exhaust his administrative remedies. 42 U.S.C. § 2000e-16(c). His twin claims for 1980 were tried on the merits to the district court. To overturn the district court, Rivera must show that the court was clearly erroneous in its finding of fact. This showing he has failed to make. ‘The meat of Rivera’s appeal consists of an issue relating to his 1979 case not vet decided by this circuit. He had appealed to the EEOC from the Postal Service's decision. Within two months he had withdrawn this appeal by “cancellation.” Did the withdrawal open the way to the district court, a path he might have followed initially if he had not first chosen the EEOC route, or was he bound, per 42 U.S.C. § 2000e-16(c), for 180 days to stay with the EEOC? 2] The answer to this question is not entirely obvious. Again the path of the law laid out by other circuits 1s contrary to Rivera’s position. The view has been taken that once a party appeals to a statutory agency. board or commissio.1, the appeal must be “exhausted.” To withdraw is to abandon one’s claim. to fail to exhaust one’s remedies. Impatience with the agency does not justify immediate resort to the courts. See Castro v. United States, 775 F.2d 399, 403-404 (Ist Cir. 1985S). Purtill v. Harris, 658 F.2d 134, 138 (3rd Cir. 1981): Jordan v. United States, §22 F.2d 1128. 1132 (8th Cir. 1978). We think this rule is sound. it means in the 1979 case that Rivera was not free to hile in the district court until the ELOC Appendix h-3 RIVERA v. Uniten States 5 ruled on April 21, 1983, He then failed to mect the statutory deadline, AFFIRMED. Appendix A-4 = * yur * UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT —— | parE: }Jan.11,1988 } ~— FORTUNATO C. RIVERA, Plaintiff-Appellant, No. 86-6589 VS. DC# CV 82-2379 MRP UNITED STATES POSTAL SERVICE, Defendant-Appellee. FORTUNATO C. RIVERA, Plaintiff-Appellant, No. 86-6607 Vs. DC# CV—82-5326 WILLIAM F. BOLGER, Post- master General, UNITED STATES POSTAL SERVICE, Defendants—Appellees. ee re Meee ee See ee me ee eet ee gl cee et ae ce ag Before: ANDERSON, PREGERSON, AND NOONAN, Circuit Judges The panel as constituted in the above case has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Appendix B The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. Re. App. Pe. 35(b). The petition for rehearing is denied, and the suggestion for a rehearing en banc is rejected. Appendix B-l UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA "Feb 14,1986" "Feb 13,1986° FORTUNATO C. RIVERA, Plaintiff, ) CASE NO. master General, United JUDGMENT States Postal Service, Defendant. This case came on regularly for trial on May 15, 1984. The plaintiff appeared pro se. The defendant was represented by Ronald K. Silver, Assistant United States Attorney. The Court having heard the testimony of witnesses and the arguments of counsel, having reviewed all materials and exhibits filed in this case, and having entered its Findings of Fact and Conclusions of Law con- currently herewith. Appendix C eerie emma If IS ORDERED, ADJUDGED AND DEUREED that judgment shall be entered in favor of the defendant against the plaintiff. DATED: February ll, 1986 s/Hariene R. Pfaelzer Triana R. aelzer United States District Judge Appendix U-1 FINDINGS OF FACT 1. Plaintiff applied for the position of ad hoc EEO investigator with the United States Postal Service in 1975. 2. Plaintiff was not selected for this position. | 3. Plaintiff was aware of his right to pursue a complaint of discrimination, but chose not to do so. 4. Plaintiff applied for the position of EEO investigator under Vacancy Announce- ment No. 328 in 1979. 5. Plaintiff was not selected for this position. 6. Plaintiff filed a formal complaint as a result of his non-selection in 1979. 7. Plaintiff's complaint was denied in a final agency action dated August 16, 1982. 8. Plaintiff timely filed his appeal with the Equal Employment Opportunity Com- mission ("EEOC") within twenty days of Appendix C-2 receipt of the final agency action. 9. Plaintiff applied for the position of EEO investigator under Vacancy Announce- ment No. 514 in 1980. 10. Plaintiff was not selected for this position. ll. Plaintiff filed a formal conm=- . plaint as a result of this non-selection. 12. Plaintiff's complaint was denied in a final agency wetton. 13. Plaintiff timely filed this com- plaint in the United States District Court on October 14, 1982. At that time, the EEOC was still investigating plaintiff's complaint of discrimination under Vacancy Announcement No. 328. | 14. ‘the EKOU reached its decision upholding the United States Postal Service as to Vacancy Announcement No. 328 on April 21, 1983. ee 15. The plaintiff did not file a new action in the United States District Court Appendix U-3 within thirty days of the decision by © the EEOC. 16. Victor Okon, Kellsey Minor and Francine Needles served as the se- lection committee to review all applica- tions under Vacancy Announcement No. 514. It was their regponsibility to review the more than 100 applications and to select six names to be forwarded to fi- nal selection. 17. The review process consisted of each of the three selectors first re- viewing each application and initially eliminating those who were obviously not qualified. 18. After this initial elimination, further selection rounds were made to narrow the number of applicants. 19. The three members of the se- lection committee were searching for de- monstrated ability in writing and com- munication skills and the ability to Appendix C-4 handle EEO type problems. 20. Plaintiff's application sur+ vived several rounds and was only re- jected near the end of the selection process. 21. ‘the reviewers, although be- lieving plaintiff to be qualified for the job, found that the people chosen for the final round were better qguali- fied for the job. 22. No one of the three reviewers rejected plaintiff's application on the basis of his national origin or age. 23. ‘The testimony of the review- ers was credible. . 24. Plaintiff was qualified for : the position, but not as well qualified , as those persons chosen for the final round. 25. ‘The defendant has articulated ae Sa a non-discriminatory reason for the failure to select plaintiff for the Appendix U=-5 position of EEO investigator. 26. Plaintiff has not demonstrated that this non-discriminatory reason was a mere pretext. 27- Any Conclusion of Law deemed — to be a Finding of Fact is hereby incor- porated into these Findings of Fact. CONCLUSIONS OF LAW 1. This is an action for employ- ment discrimination brought pursuant to the Civil Rights Act of 1964, as amended 42 U.S.C. S 2000e-16, and the Age Dis- crimination and Enployment Act of 1967, 29 U.S.C. S 622 et seq. 2. Because of plaintiff's failure to file a complaint with respect to his non-selection in 1978 for the position of ad hoc EEO investigator, he has failed to exhaust his administrative remedies and this Court lacks jurisdiction over this issue. 42 U.S.C. S 2000e-16(c); Brown v. General Services Administration Appendix C-6 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). 3. After the United States Postal Service's final agency action denying plaintiff's claim of discrimination, for the position of EKO investigator for Vacancy Announcement No. 328, the plaintiff could either bring an action before the EEOC or the United States District Court. He could not do both simultaneously. Brovm v. General Ser- vices Administration, supra. 4. By choosing to file with the EKOC, the plaintiff was required to wait 180 days from the date of filing his appeal to the ESOC, if no decision was forth- coming, before he could file his ac- tion in the district court. 42 U.5S.C. S 2000e-16(c). 5. Therefore, plaintiff's com plaint in the district court. for dis- crimination over Vacancy Announcement Appendix C-7 No. 514, filed within i80 days of plain- tiff's complaint with the EEOC, could not also include the issue of Vacancy Announcement No. 328. 6. Plaintiff's failure to file a new complaint in the district court within thirty days of the EEOC's deci- sion in the case of Vacancy Announcement No. 328 deprives this Court of jurisdic- tion to decide this issue. 7. ‘Therefore, trial in this mat-— ter concerned only the issue of Vacancy No. 514. 8. Plaintiff bears the burden of establishing a prima facie case of dis- crimination. McDonnell Douglas v. Green 411 U.S. 792, 802 (1973). 9. In order to establish a prima facie case, the plaintiff must estab— lish that (1) he belongs to a protected class; (2) that he applied for and was qualified for a position for which the Appendix C-8 employer was seeking applicants; (3) despite his qualifications, plaintiff was rejected; and (4) after plaintiff's rejection, the position either remained open or was filled by a person outside the protected class. Once plaintiff has established this prima facie case, the burden then shifts to the defendant to demonstrate that the failure to hire plaintiff was for a non-discriminatory reason. If the defendant establishes its burden, the burden then shifts once more to the plaintiff to demonstrate’ that the defendant's reason was merely a pretest. McDonnell Douglas v. Greon 411 U.S. 792, 802 (1973). 10. The defendant has demonstrated that the plaintiff's failure to be se- lected for the EEO Investigator posi- tion was for non-discriminatory reasons. ll. Any Finding of Fact deemed to Appendix C-9 be a Conclusion of Law is hereby inocor- porated into these Conclusions of Law. DATED February 11, 1986 S/yarians Re Pfaelzer ariana R. Praelzer United States District Judge Appendix C-10 —_ FORTUNATO C. RIVERA 11621 NEARING DRIVE ANAHEIM, CALIFORNIA 92804 TELEPHON#: (714) 636-7785 IN PROPRIA PERSONA UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA FORTUNATO C. RIVERA, NO. OV 82-5326 MRP (Gx) NOTICE OF MO-= Plaintiff, ; WILLIAM F. BOLGE, 4 TION: AND MO- Ve master General, United States Postal Service, TION TO AMEND Defendant. FINDINGS OF FACT AND JUDG- MENT Dates: March 24, 1986 Time: 10:00 A. M. NOTICE OF MOTION To the Defendant and his Attorneys of Record: ROBERT C. BOONER, United States Attorney FREDERICK M. BROSIO, JR, Asst. US Atty. Chief, Civil Division Appendix D RONALD K. SILVER, Assistant U.S. Attorney 1100 United States Courthouse 312 North Spring Street Los Angeles, California 90012 Greetings: PLEASE TAKE NOTICE that on the date and time set forth above, the Plaintiff will bring on for hearing the following Motion to Amend Findings of Fact and Judgment before the Honorable Mariana R. Pfaelzer, United States District Judge at Room 15, United States District Court- house, 312 North Spring Street, Los An- geles, California 90012. MOTION TO AMEND FINDINGS OF FACT AND JUDGMENT Pursuant to Rules 52(b) and 59(e) of the #3deral Rules of Civil Procedure, Plaintiff hereby most respectfully moves this Court to amend its Findings of Fact and the corresponding Judgment in order to correct the errors which are so ad- verse to him. Appendix D-1 This motion is based and supported by the following Memorandum of Points and Authorities as well as the entire case file. MEMORANDUM OF POINTS AND AUTHORITIES 1. The Judgment and Findings of Fact which appear to have been filed and entered on February 13 and 14, 1986, res— pectively, were received by the Plains:. ‘'’ tiff without the corresponding notice of entry and certificate of mailing on Feb- ruary 21, 1986, in the afternoon. The Plaintiff has no way of knowing when they were mailed by the Clerk of Court. 2. There is no issue. that the , Plaintiff belongs to a protected group, all as to age (now 62), race (oriental brown) and national origin (Philippines). 3. There is ulso no issue that he applied and was found to be qualified for the position of EEO Investigator by the ‘committee of the Postal agency. Appendix D-2 4. Likewise, there is no issue that he was rejected for the positions that he had sought and that other applicants not belonging to his age and minority groups were selected in stead of him. 5. The Findings of Pact and Judg- ment has brought about the following is- sues to be resolved, inter alia: a) Whether the Plaintiff has pro- perly exhausted his administrative re- medies by consolidating his 1978, 1979 and 1980 claims into a single complaint filed in the United States District Court on October 14, 1982; b) Whether the Plaintiff is less qualified than the other candidates who were selected for the positions that he had sought; and c) Whether the Plaintiff bears the burden of proving that he is more qua- lified for the job than the candidates who were selected. Appendix D-3 6. The Pindingsg of Fact and Judg-. ment sought to be amended or altered - failed to note the following factual cir- cunstances and legal standards justify- ing the proper exercise of administrative remedies: a) Plaintiff did not file a com- plaint upon his rejection for Ad-Hoc EEO Investigator in 1978 because the EEO Branch Manager of the Postel agency ad- vised him to continue applying for fu- ture vacancieg which the Plaintiff did at a later date. b) Plaintiff did not waive his -" *:' right to file a discrimination complaint. He knew that a continuing act of discri- mination could be pursued at a later date without any lapse of time. c) In the case of Rich v. Martin Marieta Corp. 522 F 2d 333, 348, 11 FEP Cases 211 (10th Cir. 1975), reiterated in Higgins v. State of Oklahoma, 25 FEP Appendix D—4 Cases 371, 372 (10th Cir. 1981) the Court held that so long as the Plaintiff is alleging non-proiotion for a period of time, the discriminatory failure to promote such employee constitutes e con- tinuing violation for purposes of filing a complaint under Title VII of the Civil Rights Act of 1964, as amended. ad) where employer's promotional po- licies were found to involved a patter or practice of discrimination locking mi- nority and women employees into less fa- vorable job positions the effect consti- tuted continuing violation of law and claims related to those violations were not barred by failure to heve challenged the promotional policies at inception. Patterson v. American Tobacco Co., C.A. Va. 1930, 634 ¥F. 2d 744. 42 U.S. 2000e-— 2 170. Appendix D-5 bnew ie Se allel ill la" ots e) ‘The doctrine laid dovm in en ear- lier case of Browm v. General Services Adninistration, 425 US 820, 96 S. Ct. 1895, 1961 (1976); is not applicable to this case because there existed no conti- nuing act of discrimination. Brown was :: not claiming failure to get a promotion for a period of time. It was only an isolated single act of discrimination. The Rich, Higgins and Patterson doctrine supra prevails over this case. f) Plaintiff's adninistrative com- plaint consolidating his 1978, 1979 and 1 1980 claims filed on May 18, 1981, was acknowledged by the management on May 26 1981, with the specific advice that if it is accepted it will be investigated; if it is rejected in whole or in part, the Plaintiff will be advised of his appeals rights in accordance with the provisions of 29 Code of Federal Regulations, Sec. 1613.215. Appendix D-6 &) On October 9, 1981, the EEO Branch accepted only a part or segment (the 1930 claim) of the same complaint for investigation. It never rejected the 1978 and 1979 claims. Therefore, they were deemed accepted. h) The Plaintiff strongly protested against the way the Western Regional EEO Branch was handling his complaints. i) On December 22, 1981, the Postal Service Headquarters Office of EEO in Washington, D.C., found that the proces- sing of Plaintiff's complaints was a ju- risdictional-procedural error. According- ly, it immediately assumed jurisdiction over the two complaints of the Plaintiff, the first being that of Vacancy No. 328 which included issues of the 1978 claim. j) Plaintiff requested that the in- vestigative report on his first complaint be vacated because the investigation and processing was not authorized by Postal Appendix D-7 a cee AE, regulations, but the same request was ig- nored for no reasons. k) Likewise, Plaintiff requested for the full inveytiyution of his second complaint containing his 1978, 1979 and 1980 claims, but the same request was al- so ignored for no reasons. 1) The Postal Agency did not inves- tigate all aspects of both complaints which could have included a thorough re- view of the circumstances under which the alleged discrimination occurred and also the policies and practices which might have constituted or appeared to consti-- tute discrinination even if they have not been ®Xpressly-cited in the complaints as provided by 29 CFR 1613.216. n) On both cases, the Postal Agency did not make a determination of all the issues brought by the Plaintiff. n) After two years and four months fron the filing af the first complaint Appendix D-8 (vacancy 320), the Postal Agency rendered its final decision on August 16, 1982. o) Plaintiff was then forced to file hia Notice of Appeal on August 30, 1982, with the Office of Review and Ap» peals, BKOU, with the request that he be allowed to file his Appeal Brief at such time as his second consolidated complaint could be Cinally decided by the Postal Agency. yp) Plaintiff's appeal to the Office ~* of Review eat Appeals was never perfected 43 he never filtel his Appeal Brief. Par themaore, Plaintiff requested the cancel- Lation of the Notice of Appeal on October LO, 1982, as he was then determined to “ite hia consolidated complaint om Octo- der 14, 1332. a) Im spite of the above, the Of- Piece of Review and Appeals, BSOC, rend- ered its decision ageuinst the will of . the Plaintiff om April ll, 1983. Appendix De3 r) In view of the failure of the Postal Agency to look into all the Plain- tiff's allegations in his complaints coupled by its failure to make a deter— mination of all issues presented, there could have never been a final decision by the Postal Agency to speak of. (29 CFR 1613.233 & 1613.281). Consequently, the Plaintiff conld not have been forced to file his Notice of Appeal with the Office of Review and Appeals, EEOC. s) Assuning arguendo that there was a valid final decision by the Postal Agency, the Office of Review and Appeals could not have competently and validly rendered its decision on «a mere Notice of Appeal. Further more, the same novice has been cancelled by the Plaintiff. It could have been different if the appeal was perfected because then the EEOC may proceed with the processing of the appeal even if it has already been abandoned. Appendix D-10 (29 CFR 1613.513). Therefore, the EEOC decision against the Plaintiff is non- existent, invalid. t+) The act of filing of a notice of appeal and the invalid decision that followed had never changed the status of Plaintiff's first complaint (vacancy 328). It remained to be a complaint that has not been decided by the Postal Agency af- ter one hundred and eighty (130) days from the date of filing and therefore was an approprinte subject matter of a civil suit in a Federal Court. The Postel Agen- cy has failed to erticulate any legitimate non-discriminatory and non-retaliatory reasons to justify the propriety of rend- ering a so-called "Final Decision" that does not comply with the mandates of the Code of Federal Regulations (Supra). COMPARATIVE QUALIFICAYION OF CANDIDATES 1. Among his other qualifications, the Plaintiff is 2 holder of a Four-Year Appendix D-11 B.S. In Education Degree, a Four-Year Law Degree and a Graduate Degree in Edu- cation (MA) and with several yeurs of clericul, teaching, supervisory, investi- gation, arbitration, and hearing exper- iences, aside from his years of Postal Service experiences and training achieve- ments in Postal Management and Customer pervi.ce. 2.- The Postal management selected 3 applicants for the position of Ad-Hoc EEO Investigator in 1978, 12 applicants for Position No. 328 in 1979 and 2 appli- cants for Position No. 514 in 1980. None of them possessed the sane formal educa- tion and allied experiences like the Plaintiff, yet the announcements for the same positions show that additionel ad- vantage if not preference should be given to one with investigation, arbitration and hearing experiences. 3. There were several applicants Appendix D-12 not belonging to Plaintiff's age and mi- nority groups and who were less qualified than the Plaintifi’, yet were interviewed for Positions Nos. 328 and 514. The De- fendant has not articulated any leziti- mate and non-diserininatory reason for this action. 4. Since the selection comnittee found the Plaintiff to be fully qualified, there could have been no reason other than discrimination .nd reprisal why he was not called for interview for the same -_ positions. 9. The selection procedure used was entirely subjective and impermissible as it has an adverse or disparate impact to the pleintiff end other applicants simi- larly situated. 6. Use of subjective criteria in selection system is not enough of itself to violete Title VII, but courts have ex- pressed concer over the use of subjectiv Appendix D-13 criteria when tnere is evidence that cri-:° teria furthered bias or discriminatory Classification. ‘aug ve. Hoffman, 694 F. 24 1146. (Dec. 1982). 7. Establishing qualification is an employer's prerogative, but en employer may not utilize wholly subjective stand- ards by which to judge its employees’ qualifications and then plead lack of qualification when its promotion process is challenged as discriminatory. Lee v. Connecuh County Board of Education. 634 F. 2d 959, Ala. 1981. DISPARATE IMPACT THEORY 1. Disparate impact claim chal-"°' °°: lenges practicd neutral on its face, but having more adverse impact on minorities than others. ‘Vang, supra; Civil Rights Act of 1964, 701 et seq; 42 USCA 2000e et seq. 2e In making claim that promotion policy had adverse or disparate impact Appendix D-14 on minorities, plaintiff has initial bur- den of proving that selection process re- sulted in significantly discriminatory pat- tern for promotions and, in order to pre- vail on this theory, plaintiff need only demonstrate lack of objective criteria and disparity in job gxenothen. (Ibid). 3. Once employment discrimination _ plaintiff establish prima facie case of disparate impact, burden of proof shifts to the employer to prove either that plaintiff's statistics are inaccurate and no disparity exists, or that practice is necessary to efficient operation of the business. (Ibid) 4. Employment discrimination plain- tiff claiming disparate impact of employ- er*‘s promotion policy was not required to prove that he would have been most « qualified individual for jobs, nor was he required to prove discriminatory in- tent on the part of the employer (Ibid). Appendix D-15 5. Employment discrimination plain- tiff challenging legitimacy of promotion system could not be required to prove that he qualified Car eremetions under system that he alleged to be discriminas tory where legitimacy of that system was not first established. (Ibid). PLAINTIFF'S BURDEN OF PROOF 1. Under the foregoing legal doc-— trine, the Plaintiff is not required to prove that he was the best or one of the best candidates for the EEO Investigator positions that he had sought. | 2e Therefore, the Defendant's con+ tention that the Plaintiff was not one = among the best qualified applicents for the positions that he had sought is not the true reason for his rejection. It is not legitimate and non-discriminatory, hence it is impermissible. It is not the true reason for rejecting the Plain- tiff, but is just a pretext to cover-up Appendix D~16 the discrimination and retaliation - against him for the many EEO complaints that he has filed against the Postal Ser- vice. 3. Likewise, he is not required to prove discriminatory intent on the part of the management. The law is result or- iented. Therefore, the bare statements of the members of the selecting or re- viewing committee that age and national origin were not factors for non-select- ing theiPlainttiff.iis6 not true. It is also a pretext to cover-up the discrimi- nation and retaliation against the Plain- tiff. It has also biased him and violat- ed his civil rights protected by law. 4. The Defendant has not articu- lated any reason to justify the exist- ence of disparity in job promotion. 5. Statistical figures show that for a period of time from 1978 to 1980, Orientals with whom the Plaintiff belongs Appendix D-17 got only one promotion to level 15 and : above for every 102 employees of their group as compared - (1) to whites who got one promotion for every 12 white em- Ployees, (2) to Spanish surnamed who got one promotion for every 17 employees of their group, (3) to Negros who got one promotion for every 15 negro employees, and (4) to American Indian who got one promotion for every 10 employees of their group. (PS Fortis 1789 EEO Program for Progress Report for 13 states, Western Region. CONCLUSION In view of the foregoing factual circumstances and legal standards, the Defendant could not prevail in this case. The Plaintiff has demonstrated by prepon- derance of evidence that he was not less qualified than the comparable applicants who were selected for interview and those who were selected for all the positions Appendix D-18 that he had sought. Likewise, he has al- s0 proved that, were it not for the dis- crimination and reprisal he could have been promoted to the positions that he has sought. That other then discrimina- tion because of age and national origin as well as retaliation because of the se- veral EEO complaints that he has filed against the Postal Service there could have been no reason why Plaintiff did not get a promotion to the positions that he has sought. WHEREFORE, it is most respectfully prayed unto this Court that the Findings of Fact be amended or additional findings be made and that the judgment be altered in favor of the Plaintiff. Dated: This 24th day of February 1986. Respectfully submitted: wa C. Rivera Plaintiff, In Pro Per Appendix D-19 ae UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TENT BRED ® "FILED . "Feb 14,1986! ‘Feb 13,1936! FORTUNATO UC. RIVERA, Plaintiff, ) CASE NO. WILLIAM F. BOLGER, Post- master General, United JUDGMENT States Postal Service, Defendant. this case came on regularly for trial on May 15, 1984. The plaintiff appeared pro se. The defendant was represented by Ronald K. Silver, Assistant United States Attorney. The Court having heard the testimo- ny of witnesses and the arguments of counsel, having reviewed all materials and exhibits filed in this case, and having entered its Findings of Fact and Conclusions of Law concurrently herewith, Appendix E IT IS ORDERED, ADJUDGED AND DECREED that judgment shall be entered in favor of the defendant against the plaintiff. DATED: February 11, 1986. s/Mariana R. Pfaelzer peat tans R. Praelzer United States District Judge Appendix E-1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ‘FILED ‘ 'Feb 13,1986 ' FORTUNATO C. RIVERA, CASE NO, Plaintiff, CV 82-2379 MRP Ve FINDINGS OF FACT WILLIAM F. BOLGER, reo ad AND CONCLUSIONS master General, United States Postal Service ) OF LAW This case came on regularly for trial on May 15, 1984. ‘The plaintiff appeared praise.’ The:defendant was represented by Ronald K. Silver, Assistant United States Attorney. After hearing the testimony of wit- nesses and the arguments of counsel, and after reviewing all materials and exhi- bits filed in this case, as well as plaintiff's Objections to the Findings of Fact and Conclusions of Law Prepared by the Defendant, the Court makes the following Findings of Fact and Conclu- sions of Law. Appendix E-2 (A tne I A FINDINGS OF FACT 1. Plaintiff, Fortunato C. Rivera, is an American citizen of Filipino origin and an Oriental. He was over the age of 40 years when the events of which he com- plains took place. 2. The plaintiff is an employee of the United States Postal Service. 3. The plaintiff attempted to become a supervisor under the promotional system which was in effect prior to institution of the Profile Assistment System for Sup- ervisors ("PASS"). However, it was a re- quirement that an employee have 1-1/2 years of postal service experience in or- der to be eligible for promotion. The promotional system was replaced nation- wide by PASS on April 1, 1978. As of that date, the plaintiff had not yet had one and one-half years of postal service experience and was therefore not quali- fied for promotion under the old system. Appendix E-3 4. The plaintiff then attempted to gain promotion under PASS. The plaintiff was found to be highly qualified to enter into the training progran. 5. The plaintiff had to undergo sup- ervisory training as part of the require- ments for promotion. This was called 204B Supervisory Training. During this training period in 1980, the plaintiff was evaluated by Lynn White, Ralph Johns- ton and Steve Bannister. lhLynn White, who was the principal supervisor of plain-. tiff's training, found that plaintiff was unable to appreciate the value of or necessity for paperwork. He found that plaintiff could not master the color cod- ing system that the Postal Service used at the Santa Ana facility, and he assigned someone to help plaintiff. Even with this assistance, plaintiff was unable to adequately perform his job. Mr. White also found that plaintiff had difficulty Appendix E-4 in communicating with those employees un- der his supervision. He also testified as to an incident where plaintiff became involved in an argument with a customer during a lobby call. For these reasons, Mr. White decided that plaintiff was not qualified to become a supervisor. 6. Ralph Johnston also observed the difficulty that plaintiff had with master- ing the color coding of the mails end his difficulty in communicating with the em- ployees under his supervision. Mr. Johns- ton determined that plaintiff was not qua- lified to become a supervisor. 7. %&In determining that plaintiff was not qualified for the position of super- visor, Mr. Bannister relied principally on the observations of Mr. White and Mr. Johnston. However, he also took into consideration his own observations of plaintiff in determining that plaintiff was not qualified for the position of Appendix E-5 supervisor. 8. As a result of the evaluations | of Messers._White, Johnston and Bannis- ter, plaintiff was denied promotion to a supervisory position. These evaluations were made honestly, fairly and without discriminatory motive on the part of messrs.e. White, Johnston and Bannister. 9. These witnesses all testified that they did not consider Mr. Rivera's national origin or age as factors in de- ciding whether he was qualified for the position of supervisor. Their testimony was credible. 19. Plaintiff was not qualified for the position of supervisor and he was not denied the position of supervisor on the basis of his age or national origin. 1l. a > a i i i i eh Signature SF-423-4 (REV A - 7/82) (CA) (INDIVIDUAL) owwvwvewvwrwrewererevrvwrwrevevwwwevwevwwvwwvwwewvwvwvevwvvwwe (This area for official notarial seal) - Page Two of ‘lwo Pores- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1604%3A1. Public record. Not legal advice.